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In the Trump campaign's letter demanding that CNN retract its poll claiming Biden leads Trump, the letter claims:

The poll is intentionally false, defamatory and misleading, and designed to harm the Donald J. Trump for President, Inc. campaign.

For the sake of the argument assume that CNN did lie, and that the raw poll data shows that Trump is ahead of Biden. Would that legally be defamatory? IANAL, but my understanding is that for a statement to be defamatory is would have to be about something the plaintiff did (or didn't) do, and so wouldn't apply to poll about what other people are planning on doing in relation to the plaintiff.

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    On the flip side, there's some precedent for the idea that falsely accusing someone of lying may be defamatory, ir.lawnet.fordham.edu/iplj/vol27/iss2/2. So conceivably there could be grounds for CNN to sue the Trump campaign, if it is not the case that the poll is intentionally false. – Nate Eldredge Jun 12 at 20:53
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Various state differences notwithstanding, to establish a prima facie case of defamation, one must show:

1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.

Additionally, since The Donald is a public figure and public figures often get publicly talked about, one must, per the famous NY Times v. Sullivan SCOTUS case, show

that the false, defaming statements was said with "actual malice." The Sullivan court stated that"actual malice" means that the defendant said the defamatory statement "with knowledge that it was false or with reckless disregard of whether it was false or not." The Sullivan court also held that when the standard is actual malice, the plaintiff must prove actual malice by "clear and convincing" evidence, rather than the usual burden of proof in a civil case, which is the preponderance of the evidence standard.

Addendum:

Sorry, forgot to actually tie this back to your question.

To prevail, Trump would have to prove - by clear and convincing evidence, which is harder to achieve than preponderance - that, essentially, CNN conducted this poll, received results X, but instead purposely reported results Y.

Per your question, assuming the above, then theoretically, maybe he could prevail. No, it does not have to be about something he did or didn’t do. Another example could be publishing a news report that someone is a pedophile. That is not necessarily about something someone did or didn’t do.

In the poll example, especially considering how often polls are wrong and this far away from the election, the tougher hurdle to clear for Trump would be to prove there were damages.

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  • There's a definition at the top of the LII page that you've omitted: "Defamation is a statement that injures a third party's reputation." Would Trump have to show that the statement injured his reputation? Is it clear that a statement to the effect of "voters have a low opinion of him" would meet that standard? – Nate Eldredge Jun 12 at 20:48
  • I left that out as element 4 covers its scope and those four elements make up the analysis the court would undertake. Re: your two questions, that’s certainly the argument(s) Trump would make in a hypothetical trial. I do not think it’s clear they’d meet the standard. But if, for example, the same scenario occurred 4 days (or whatever) before the election, I think the argument gains some strength. Still would be unclear, though. – A.fm. Jun 12 at 20:54
  • If there never was a poll that would be defamation – Dale M Jun 13 at 0:46
  • @DaleM You mean, if no poll was conducted but the media outlet nonetheless reported that one had been taken (and the results were bad for Trump)? I'd agree that's edging closer, although not necessarily (in the US, at least). The Restatement of Torts, 2nd states that a statement is defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." I don't think it's clear that hearing news of this poll (which didn't occur and which shows him losing) would lower him in peoples' eyes. – A.fm. Jun 13 at 1:37
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Would that legally be defamatory?

No. Defamation has to do with statements that deter others from associating with the potential plaintiff. See, for instance, Gertz v. Robert Welch, Inc., 418 U.S. 323, 371 (1974). Hence why defamation law is supposedly "intended" to protect a[n innocent] person's good name and reputation.

In an elections context, it is not at all clear how or whether the alleged results of a poll would cause said deterrence among people who beforehand intended to vote for the candidate. The adverse conclusions from a poll might actually motivate people to go out and cast their ballot (instead of staying at home) to support that candidate for fear that the alleged predictions from the poll materialize. With the impact of alleged poll results being so unpredictable, the defamation (if any) inherent thereto is inconclusive.

my understanding is that for a statement to be defamatory is would have to be about something the plaintiff did (or didn't) do

That is most frequently the case, although there are other scenarios that have nothing to do with the plaintiff doing or not doing something.

For instance, a false rumor that a person has a highly contagious disease tends to dissuade others from associating with him. But acquiring a contagious disease does not necessarily imply the person did or refrained from doing anything. Indeed, there are several contagious diseases that a person could (1) acquire inadvertently, (2) through no fault of his, and yet (3) prompt others to avoid him. Therefore, that false rumor is defamatory.

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  • Care to articulate the reason(s) for the downvotes? – Iñaki Viggers Jun 13 at 7:19

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